United States District Court, D. Arizona
Steven T. Waltner; Sarah Van Hoey, Plaintiffs,
United States, Defendant.
G. Campbell Senior United States District Judge.
Plaintiffs Steven T. Waltner and Sara Van Hoey, who formerly
were married, have sued the United States seeking tax refunds
from 2013 through 2016. Doc. 1. Defendant United States moves
to dismiss Plaintiffs' complaint under Rule 12(b)(1).
Doc. 19. The motion is fully briefed and no party requests
oral argument. Docs. 24, 29. The Court will dismiss the
complaint without prejudice.
Legal Standards. A. Rule 12(b)(1).
motion to dismiss under Rule 12(b)(1) can be either a facial
or factual attack on jurisdiction. Thornhill Publ'g
Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733
(9th Cir. 1979). A facial attack asserts that the allegations
in the complaint are “insufficient on their face to
invoke federal jurisdiction.” Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
To determine whether jurisdiction exists, the complaint's
allegations are taken as true and construed in favor of the
non-moving party. Jacobsen v. Katzer, 609 F.Supp.2d
925, 930 (N.D. Cal. 2009) (citing Fed'n of African
Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207
(9th Cir. 1996)).
factual attack “disputes the truth of the allegations
that, by themselves, would otherwise invoke federal
jurisdiction.” Safe Air for Everyone, 373 F.3d
at 1039. In such an attack the plaintiff's allegations
are not entitled to a presumption of truthfulness, the Court
may look beyond the pleadings to resolve factual disputes,
and the plaintiff has the burden of proving jurisdiction.
Id. The plaintiff must “present affidavits or
any other evidence necessary to satisfy its burden.”
St. Clair v. City of Chico, 880 F.2d 199, 201 (9th
Subject Matter Jurisdiction over Tax Refund Suits.
assert a claim against the United States, Plaintiffs must
prove that sovereign immunity has been waived. Dunn &
Black, P.S. v. United States, 492 F.3d 1084, 1087-88
(9th Cir. 2007). As a result, “[a]bsent its consent to
suit, an action against the United States must be
dismissed.” Elias v. Connett, 908 F.2d 521,
527 (9th Cir. 1990).
28 U.S.C. § 1346(a)(1), federal courts have jurisdiction
over civil actions against the United States to recover
collected taxes only when certain administrative requirements
are satisfied. 28 U.S.C. § 1346; United States v.
Dalm, 494 U.S. 596, 601 (1990). A plaintiff must first
file an administrative claim for a refund with the Secretary
of the Treasury. 26 U.S.C. § 7422(a); Dalm, 494
U.S. at 601-02; see also Tosello v. United States,
210 F.3d 1125, 1127 (9th Cir. 2000). The claim must be filed
within “three years of the time the [plaintiff's
tax] return was filed or two years of the time the tax was
paid, whichever is later.” Yuen v. United
States, 825 F.2d 244, 245 (9th Cir. 1987) (citing 26
U.S.C. § 6511(a)). Under the “look-back”
provision in 26 U.S.C. § 6511, when a plaintiff files a
claim within three years of filing her tax return, she may
not recover more than the tax she paid “within the
period immediately preceding the filing of the claim, equal
to 3 years plus the period of any extension of time for
filing the return.” 26 U.S.C. § 6511(b)(2)(A).
“Plaintiff must satisfy both the filing deadline and
applicable ‘look-back' period of § 6511 in
order to demonstrate a waiver of sovereign immunity by the
United States.” Family Leadership Found. v. United
States, No. 06 CV-678-PHX-SMM, 2006 WL 3218661, at *2
(D. Ariz. Nov. 3, 2006) (citing Omohundro v. United
States, 300 F.3d 1065, 1067-69 (9th Cir. 200)).
plaintiff may not sue until six months after filing her
administrative claim, unless the Secretary issues a decision
on the claim within six months. But suit must be brought no
later than two years after notice of rejection of a claim. 26
U.S.C. § 6532(a)(1); Sorenson v. Sec'y of
Treasury of U.S., 752 F.2d 1433, 1439 (9th Cir. 1985).
alleges that Plaintiffs are owed a tax refund from their
joint 2013 return, filed on April 25, 2014, and amended on
April 15, 2015. Doc. 1 at 5. Documentation from the Internal
Revenue Service (“IRS”) shows that Plaintiffs had
an overpayment in 2013 of $1, 222, which was applied to an
unpaid civil penalty they owed from 2004. Doc. 25-6 at 2-4.
Plaintiffs dispute any unpaid liability from
2004. Docs. 24 at 4-5; 1 at 6.
seeks a tax refund from Plaintiffs' joint 2014 return,
filed on April 15, 2015. Doc. 1 at 7-8. IRS documentation
shows that Plaintiffs had an overpayment in 2014 of $8,
759.17, which was applied to unpaid tax liability from 2005
and 2007. Doc. 25-6 at 6. Plaintiffs deny liability for those
years. Doc. 1 at 8.
seeks a tax refund from Plaintiffs' joint 2015 return,
filed on April 25, 2016. Doc. 1 at 9-10. IRS documentation
shows that Plaintiffs had an overpayment in 2015 of $6,
038.77, which was applied to unpaid tax liabilities from 2004
and 2007. Doc. 25-6 at 9. Plaintiffs deny liabilities for
those years. Doc. 1 at 10.
seeks a tax refund from Plaintiff Waltner's 2016 return,
filed on October 30, 2017. Doc. 1 at 11. IRS documentation
shows that Waltner had an overpayment in 2016 of $1, 171.76,
which was applied to unpaid tax liability from 2008. Doc.
25-6 at 15.
seeks a tax refund from Plaintiff Van Hoey's 2016 return,
filed on October 18, 2017. Doc. 1 at 12. IRS documentation
shows that Van Hoey had an overpayment in 2016 of $3, 107.93,
which was applied to unpaid tax liability from 2007. Doc.
25-6 at 12. Van Hoey denies liability for 2007. Doc. 1 at
seeks a refund of civil penalties that Plaintiffs allege they
have overpaid. Doc. 1 at 14.
seeks damages under 26 U.S.C. § 7433 related to
“Defendant's collection of taxes for 2007 and civil
penalties for 2003 through 2008.” Doc. 1 at 14.
seeks damages under 26 U.S.C. § 7432 related to
Defendant's alleged failure to release tax liens. Doc. 1
government's Rule 12(b)(1) motion makes a factual attack.
It challenges whether Plaintiffs have exhausted their
administrative remedies as alleged in their complaint.
See Docs. 19 at 1; 1 at 2. The Court therefore will
not presume the allegations of the complaint to be ...